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Friday, February 8, 2013

New Mexico House Bill 206: When Abortion after Rape or Incest is Tampering with Evidence

by Nomad

Looks like one legislator in New Mexico got caught trying to pull a fast one on voters when it comes to abortion. Draft legislation in the New Mexico State Congress would have made the bodies of every woman pregnant from rape or incest a crime scene. According to House Bill 206, any woman attempting to terminate the pregnancy would be charged with the third-degree felony of “tampering with evidence.”

The bill would have made a crime of “procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of criminal sexual penetration or incest with the intent to destroy evidence of the crime.”

When news of the bill made headlines, the embarrassed sponsor of the bill found herself in the middle of a political storm.

Furious Backpedaling in Santa FeWhen details of the bill were made public, Republican Rep. Cathrynn N. Brown of Carlsbad, the sponsor of the bill, told reporters that:

“House Bill 206 was never intended to punish or criminalize rape victims. Its intent is solely to deter rape and cases of incest. The rapist — not the victim — would be charged with tampering of evidence.”

(Brown fails to mention that the original version of her draft did not include any provision that victims could not be charged. That addition and revision apparently came after the public outcry. To see the original version, click here: )

In the face of a public backlash, Brown was forced to add important clarifications ( From “ Whoever commits tampering with evidence shall be punished as follows:...” suddenly became “In no circumstance shall the mother of the fetus be charged.”)But, since the bill doesn't define "procuring or facilitating"or "compelling or coercing" a careful re-reading also shows that anybody who encourages a woman to get an abortion after these crimes could be charged. Perpetrators of rape and incest are not exclusively specified.

Let's take a closer look at the details.

As a third-degree felony, the crime of tampering with evidence (that’s the fetus in this case) could carry a sentence of up to three years in prison. That’s in addition to the rape or incest charge. First question: How would this actually deter rape and incest? Where is her evidence that an additional three years in prison would reduce the numbers of cases for either crime?

Was it really necessary to create a new law?

Wouldn’t it be more logical to strengthen the present rape laws in New Mexico? For the first degree felony of criminal sexual penetration- one of the many ways to describe rape, a first time offender in New Mexico receives 18 years in prison. (Nationally this is about average.) How much of a serious deterrence would three more year actually be for a rapist? Do criminals really think like that? Would a rapist see any real deterrence between 21 years or 18 years?

If the bill was supposed to fight the crime of incest, then again, why not take a closer look at increasing the punishment? In New Mexico, incest is only a third-degree felony, comparative to driving under the influence. Moreover, a conviction for incest can mean up to three years imprisonment in a state prison. Not what most people would call a stiff sentence. So, Brown could say that the tampering with evidence charge would, at least, double to the punishment. But that misses the point.

If Brown had been serious- and we have every reason to doubt she was- then the first logical step would be making incest a second degree felony, similar to the crime of the sexual exploitation of a minor. As a felony of this degree, the punishment would bring the punishment up to nine years in a state facility. Isn't that the least we could do for victims, especially the child victims?

Given all this, New Mexico citizens have every reason to question Brown’s sincerity about her motives. According to the article, critics of the bill have been outspoken:

The Democratic Party of New Mexico has released a statement on the bill, with party Chairman Javier Gonzales calling it an “atrocious” piece of legislation.

“This bill is wrong and should never see the light of day in any legislature in this country, let alone New Mexico,” Gonzales said. “The war on women in America has to stop. No woman should ever be forced to carry a child for ‘evidence,’ plain and simple.”

Cynics would say that the ambiguity in the bill was purposeful and, until outrage demanded a revision, the law could easily have been exploited against rape and incest victims seeking to terminate an unwanted pregnancy. Cynics are often correct.

What Brown Should know about Rape and Incest in New Mexico

When it comes to rape in New Mexico, the facts and figures should be a motive for a serious approach. According to Kenneth J. Ruggiero, Ph.D. and Dean G. Kilpatrick, Ph.D, authors of the 2003 “Rape in New Mexico: A Report to the State”

Of the approximately 675,000 adult women living in New Mexico, about 128,000 have been raped at least once during their lives.

As shocking as that figure may be, this statistic is considered by many to be too conservative.

These estimates are conservative because they do not include women who were never forcibly raped but who have experienced alcohol- or drug-facilitated rape, incapacitated rape, statutory rape (i.e., rapes in which the perpetrator had sex with an underage child or adolescent without using force or threat of force), or attempted rape.

Furthermore, victims who were raped by husbands or boyfriends may not consider themselves “actual” victims. Victims also may wrongly suspect that they were somehow responsible for the crime perpetrated on them. Even with public education about sexual assaults, that idea persists. So, if anything, that number is likely to be on the low side. Nationally, only 42% of rape and sexual assault victims say they reported the crime to the police. (That's why a comment from officials about victims not fighting "hard enough" or were somehow "provoking" the attacker undermines accurate reporting of the crime.)

Clearly New Mexico has a substantial rape problem. And while the crime itself is horrific, the long-term effects can have a devastating result on the lives of the victims. That report noted that of the 128,000 adult women in New Mexico who have been forcibly raped, nearly 40,000 have developed Post Traumatic Stress Disorder (PTSD) at some time in their lives. The report also cites suicide and depression as another long-term effect of rape.

Nationally, while 10% of female non-victims have experienced major depression, that number triples to 30% for rape victims. That depression often leads to thoughts or attempts at taking one’s life.

Serious suicidal thoughts at some time in their lives, experienced by 33% of rape victims (over 42,000 victims in New Mexico) and 8% of non-victims of crime.

Suicide attempt at some time in their lives, reported by 13% of rape victims (nearly17,000 victims in New Mexico) and only 1% of non-victims of crime.

If Brown was genuinely interested in helping rape victims, then another place she might have started was in finding solutions was to seek out more state and federal funding for non-profit organizations that deal directly with the problem of rape trauma.

One such organization, Solace Crisis Treatment Center, in Santa Fe offers free counseling services to victims of trauma, violence and rape. In 2011, despite an increase in clients, the center was faced with a deficit of about $100,000 and a cutback in staff (from 23 to 12 in the past two and a half years) For its service to the community and to law enforcement, Solace drew high praise.

Robert Vasquez, a Santa Fe Police Department sergeant and supervisor for the department's Crimes Against Children Unit, said, "Solace is very unique when it comes to dealing with traumatic sexual assault. They are the only ones we can go to who assist us with forensic interviews and sexual-assault examinations."

Also, statistics suggest a relationship between drug use and rape. While it can be debated whether that connection is actually a result of the rape or part of the overall victimology. (meaning, that drug addicts are more likely to be sexually victims.) the link should be a call for action.

Cocaine use at some time in their lives, reported by 15.5% of rape victims (about 20,000 victims in New Mexico) and 2.6% of non-victims.

Use of hard drugs other than cocaine at some time in their lives, reported by 12.1% of rape victims (over 15,000 victims in New Mexico) and only 1.2% of non-victims.

According to the Legislative Finance Committee, chaired by John Arthur Smith, a Democratic member of the New Mexico Senate, the state spends hundreds of millions of dollars on behavioral health care every year but still has among the worst rates in the nation for drug overdoses, alcohol addiction, and suicides. Perhaps all that is needed is a better strategy in dealing with this problem and a lot more oversight. Representative Brown could have looked at this too if she were truly interested in helping victims.

Stronger punishment for rape and incest and more social services for victims. We might add more public education which might add to better reporting. Pretty basic stuff, all in all.

Of course, like most politics, House Bill 206 is not what it appears.

Playing Dress Up with the Laws

In a desperate effort to spin things in her favor, Rep. Brown told a local newspaper that she had drafted the bill too quickly and, due to a mix-up, it arrived before it was finished cooking, metaphorically speaking. Her excuse was that she goofed. The “Whoops!” excuse isn’t quite satisfactory from elected representatives. And, when is being in a hurry ever a valid excuse for badly-written laws?

Most people weren’t buying it anyway, not from an experienced attorney. (She's actually a member of the Judiciary House Committee.) They have good reason for doubting her sincerity too. As one source reports:

"State Democratic spokesman Scott Forrester said "it's impossible that this was a mistake," noting that the bill had nine GOP co-sponsors. "She got caught," he said. "She can't backtrack. ... Her agenda is pretty clear."

So it seems, despite Brown’s denials, it was actually a matter of dressing up anti-abortion legislation under the cover of protecting women’s rights and defending victims of crime.

It is no surprise that pro-life groups and the representative they support should make New Mexico are target for anti-abortion laws. Along with Montana, New Mexico is one of the two Red States without any of the common forms of abortion restrictions. That fact that some pro-life groups would probably say needs rectifying.

It has to be repeated that abortion in the United States is legal and despite determined efforts, the Supreme Court's Roe vs. Wade ruling has not been overturned. That possibility is unlikely anytime soon. The law of the land, affirmed by the highest court, will remain in place whether anti-abortion groups like it or not. Meanwhile people like Representative Brown and so many others will continue to draft into law bills like House Bill 206.. unless somebody calls them out.

So, the watchword is "vigilance." because you can expect to see more deceptive methods to restrict abortion and to deny women the right to choose cropping up in state legislatures.

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